The child's best interest should come first: AB 54 should not become Wisconsin law

Family Law attorney Michele Perreault discusses her opposition to Assembly Bill 54, arguing that it minimizes the best interests of a child to promote a political goal of equal participation. This is part one in a two-part pro-con examination of the legislation.

Editor’s note: This article provides one of two perspectives featured in this week’s edition of WisBar InsideTrack. The other perspective, offered by Dominic Anderson, can be found here. These perspectives are adapted from articles that appeared in the June 2011 Wisconsin Journal of Family Law.

June 15, 2011 – Recently, the State Bar’s Family Law Section Board votedtooppose 2011 Assembly Bill 54, which proposes sweeping changes to the manner in which legal custody and physical placement decisions are reached by courts in actions affecting the family across Wisconsin.

Simply put, this is a bad solution in search of a problem. If this bill, or any similar measure is passed, children in Wisconsin will suffer.

Let’s begin with a rather uncontroversial statement: Children generally do well when they have two actively involved parents, before, during, and after a divorce or dissolution of a relationship. What should also be a similarly uncontroversial statement takes on new life only when mentioned in the context of this legislation: Some parents should not have equal placement of their children. And finally, here comes the controversial statement: On occasion, even with two good parents, equal placement is not in the best interests of the child.

Proponents of the change are a small, but vocal group of “father’s rights” advocates who insist – with absolutely no statistical support – that fathers in Wisconsin are not getting a fair shake at placement. These groups and their supporters are prone to circulate the same “statistics” and “studies” repeatedly, but when one tries to trace the “facts” back to the alleged citation or source, the “research” is either non-existent, or in many cases, so poorly conducted that the results are not supported by any legitimate researcher. In fact, the studies are often self-referential, quoting their own books and articles.

Currently, courts look at numerous factors designed to determine – only if the parents themselves are unable to determine – what is in the best interests of the individual child. Courts apply those same standards to both mothers and fathers. Capable and involved parents are routinely awarded substantially equal placement. Absentee parents and those with histories of violence, AODA problems, or inability to parent are awarded more limited placement. An absentee mother or one with drug and alcohol problems will face the same limitations as a father with such problems. This bill presumes there are no biological parents with limitations such that placement should be less than equal.

As for the “controversial” statement that equal placement is not always in the best interests of children, imagine a very simple, yet common, scenario: Shortly after a divorce, one parent moves 30 miles away from the other parent. Equal placement means the child will have almost two hours of commuting every day they spend with the parent who moved, and virtually eliminate the easy interaction with his or her long-term neighborhood friends. Often, after-school activities are impossible. Are we really willing to trade that stability for a couple hours of time with a parent (at best) before bed? A schedule that permits the child to have a “home base” closer to school and friends, while providing substantial and meaningful periods of placement with the other parent makes much more sense from the child’s perspective.

Creating a schedule that takes the child’s experience into perspective does not make one parent a bad parent, but under AB 54, the court is not going to hear much about the child’s experience, just a parent’s “rights.”

To understand why AB 54 is so harmful, we have to look at how it modifies current law.

Current law

Wisconsin law currently requires courts to consider the facts of each case before them individually, and then set a schedule “that allows the child to have regularly occurring, meaningful periods of physical placement with each parent and that maximizes the amount of time the child may spend with each parent, taking into account geographic separation and accommodations for different households.”

Thus, it is the experience of family lawyers throughout the state that involved parents get substantially equal placement usually through settlement, and if necessary, judges make such orders. The point is, each case is looked at individually, with the children’s best interests paramount.

Proposed changes

This bill shifts the focus from protecting and promoting the best interests of children by creating a cookie-cutter presumption that a schedule that equalizes placement for the parents to the highest degree possible is in a child’s best interests, rather than beginning with consideration of the factors set forth in Wis. Stat. section 767.41(5) which represent many predictors indicative of positive child adjustment when the parents are living in separate households.

AB 54 eliminates the presumption in placement modification disputes that continuing the current placement schedule and allocation of decision-making authority is in the best interests of children, therebyeliminating the considered judgment that continued stability and predictability for children is in their best interests when a parent seeks modification of a placement order.

Victims of domestic violence and their children will suffer significantly under this proposal. Because the standard to avoid equal placement is so high, victims of domestic violence who are unable to show “clear and convincing” evidence will be exposed to increased danger of repeat violence, and children will be exposed to violent households.

Pro se litigants, which currently constitute well over 60 percent of all divorces, will have very little likelihood of knowing how to present a case to overcome the presumption, even in cases where equal placement is undeniably not in the children’s best interests (e.g., absentee parent, abusive parent, parent with AODA problems).

The ease with which substantial modifications will be made will eliminate the benefit of stability and predictability for children. Based solely on completion of a course, or a parent moving, children will be ripped from stable homes, routines, and schedules, and placed in totally new environments. The harm to children from such changes will be overwhelming and potentially damage them for life.

Children should not be used as pawns for political purposes. Taking away, or minimizing the best interests of the child standard is not the way to encourage equal participation by both parents. AB 54 should not become the law of Wisconsin.

About the author

Michele Perreault is an attorney in the Madison office of Dewitt Ross & Stevens, S.C. Her practice focuses on family law and civil litigation and concentrates on divorce, domestic partnerships, and adoptions in the family law area. Perreault is an adjunct professor at the University of Wisconsin Law School.